Lapas attēli
PDF
ePub

and because the matter in dispute in every such case exceeds the sum of fifty dollars; but no such writ of error lies from the Circuit Court to the Supreme Court, unless at least fifty penalties can be recovered in one action, and a judgment for five thousand dollars thus be obtained; for a qui tam patent case is not a case touching a patent right.' Such actions are based on pretensions of patent rights, where no such right exists.

'Revised Statutes, Section 633. 2 Revised Statutes. Section 692; 18 Statutes at Large, Part 3, Ch. 77,

Sec. 3, p. 316.

* Revised Statutes, Section 699.

CHAPTER XVI.

INFRINGEMENT.

[blocks in formation]

considered in the light of the views of Justice CLIFFORD. 355. The same question considered in the light of the cases of Mason v. Graham and Clough v. Mfg. Co.

356. The same question considered in the light of sundry Circuit Court cases.

357. The same question considered in the light of the case of Potter v. Stewart.

358. Review of the question considered in the last four sections. 359. Primary and secondary inventions in respect of the doctrine of equivalents.

360. Primary inventions considered in this respect.

361. Secondary inventions considered in the same respect. 362. Review of the matters considered in the last three sections. 363. Changes of form considered in respect of questions of infringe

ment.

364. Subject of the last section illustrated by the case of Strobridge v. Lindsay.

365. Illustrated by the case of Ives v. Hamilton.

366. Illustrated by the case of Morey v. Lockwood.

367. Illustrated by the case of the American Diamond Rock Boring Co. v. The Sullivan Machine Co.

368. Illustrated by the case of Eliza

beth v. Pavement Co. 369. Infringement of patents for compositions of matter. 370. Substitution of ingredients. 371. Substitution of ingredients as illustrated by the Giant-Powder

cases.

372. Disclaimers of particular equiv. alents.

373. Changes of the proportions in compositions of matter.

374. The various classes of compositions of matter.

375. Infringement of patents for designs.

376. Comparative utility not a criterion of infringement.

377. Knowledge of a patent not a necessary element in its infringement.

§ 335. A PATENT for a process is infringed by him, who, without ownership or license, uses substantially the process which the patent claims; whether or not he uses substantially the apparatus which the patent describes.' Infringement of a process patent may occur even where precise identity does not exist in respect of the process claimed by the patent, and that used by the infringer. In the leading case just cited, the apparatus used by the infringer was totally unlike that described by the patent; and the process used by the infringer differed from the patented process in several particulars. The claim of the patent was: "The manufacturing of fat acids and glycerine from fatty bodies by the action of water at a high temperature and pressure." The description of the process which was contained in the specification of the patent, stated that the water should be mixed with the fatty body in the proportion of two or three parts of fat, to one of water; and that the mixture should be heated to about 612° Fahrenheit; and should be subjected to a pressure sufficient to prevent the heat from converting the water into steam.

The infringer mixed from four to seven per cent of lime with the water and the fat; and heated the mixture to only about 310° Fahrenheit; and subjected it to a pressure correspondingly lower than what would have been necessary to prevent the conversion of the water into steam, if he had used the higher degree of heat. So also, he heated his mixture by means of superheated steam introduced into the

[blocks in formation]

vessel containing it, instead of applying heat to the outside of the vessel; and he maintained the intimacy of the mixture by continuously pumping the water from the bottom to the top of the mingled mass, instead of continuously forcing the mixture through a coil of tubes. Notwithstanding all these differences, the Supreme Court held the defendant's process to substantially include that of the patent, and therefore to be an infringement of the latter. This holding was not inconsistent with the opinion that the addition of the lime to the mixture, was a useful addition to the patented process, nor with the possibility that the defendant's method of maintaining the intimacy of the mixture, was superior to that of the patent, nor with the probability that the heating by the introduction of superheated steam, was more perfect than by conducting the heat into the mixture through the walls of the inclosing vessel, nor with the fact that the lower degree of heat and of pressure used by the defendant was more safe, and perhaps more economical, than the higher degree of each, which was suggested in the patent.

§ 336. Similar circumstances characterized the question of infringement in the case of Mowry v. Whitney.' The patent in that case covered a process, which consisted in taking cast iron car-wheels from their moulds as soon as they become solid enough to retain their shape; and in immediately placing the wheels in a furnace or chamber, previously heated to about the temperature of the wheels when taken from the moulds; and in thereupon reheating those wheels; and then in causing them to finally cool with a great degree of slowness.

The infringer's process consisted in taking the wheels red hot from the moulds; and in thereupon putting them in an unheated chamber, interlaying them with charcoal, and covering the whole with a perforated metal plate; and in then causing the charcoal to burn so as to reheat the wheels to a somewhat indefinitely high temperature; and

'Mowry v. Whitney, 14 Wallace, 620, 1871.

in so adjusting the draft, as to make the charcoal burn out and the wheels to consequently cool down, with a great degree of slowness. The Supreme Court found all of the steps of the complainant's process in the defendant's doings, though confessedly the reheating was done by different means, and the slow cooling regulated on different principles, from those which caused and controlled the corresponding parts of the complainant's process.

§ 337. The case of Cochrane v. Deener' involved the infringement of a patent for a process of winnowing impurities out of ground wheat, while the flour is being separated from the other parts of the meal by means of fine cloth sieves, commonly called "bolts." The patent described a suitable apparatus by means of which to practise this process. It consisted of a series of cylindrical sieves, covered with cloth of progressively finer meshes, and having within them a series of air pipes, so disposed that when the ground wheat was in the sieves, and the sieves were revolving, air blasts were blown from the ends of those pipes, into and among the particles of ground wheat. Those air blasts operated to blow the impurities through the opening in the top of the bolting chamber, at the same time that the revolutions of the sieves operated to separate the flour from the middlings. The result of the whole operation was to separate the ground wheat into three sorts of matter, and to place those three sorts in three different receptacles.

The defendant accomplished the same result, by winnowing the impurities out of the ground wheat, while the flour was being separated from the other parts of the meal, by means of fine cloth sieves. But the defendant's sieves were flat, and the air blasts were blown through those sieves from below and reached the impurities through the cloth, instead of reaching them from the ends of pipes located on the same side of the cloth, as that occupied by the ground wheat. The Supreme Court, however, held that process to

'Cochrane. Deener, 94 U. S. 787, 1876.

« iepriekšējāTurpināt »